Jury Awards No Damages in Case Concerning Havre City Councilor and Evicted Tenant

HAVRE, Mont. (NMB) – A Hill County Jury has ruled an LLC owned by a Havre City Councilor is liable for one count of unlawfully entering a residence and two counts of unlawfully ousting a tenant, but awarded no damages to the plaintiff.

Defendant A.M. Rentals LLC, which is owned by Havre Ward 4 Alderwoman Sarah McKinney, was sued by Havre resident Mervin Fulton in Hill County District Court.

The Jury did not find the defendant liable of the following:

  • Violation of the Consumer Protection Act
  • Failure to act in good faith
  • Unlawfully exceeding the legally available remedies to remove Plaintiff from his apartment
  • Intentional Infliction of Emotional Distress

“I’m relieved and thankful that there were jurors willing to participate,” McKinney told New Media Broadcasters after the verdict. “And I’m excited to put it behind me and just get going on the work of refurbishing apartments and making them livable again. We’ve had to put a big standstill to some of our housing projects so we could cover legal fees. Now we can pick those up again. So (I’m) very grateful for the judicial process in action.”

Fulton was evicted by the defendant on December 26th, 2020. McKinney entered the residence without prior notice, changed the locks, and moved all of Fulton’s belongings into a garage a few dozen steps away that Fulton was able to access.

One of the counts of unlawful ouster was for changing the locks, one was for removing all property.

“It’s illegal to enter someone’s rental while the person is away and the landlord thinking they can just get away with something like that – (it was) ruled against the landlord. If you have priceless stuff in there, don’t seek damages, because it probably won’t happen, even though they were in the wrong,” Fulton told New Media Broadcasters after the verdict was read.

“They moved all my things out of my home,” Fulton added. “That was my home. My precious things. Past, present and future. Everything.”

Even though Fulton was not awarded any damages, he says he is still keeping his spirits up.

“I’ve been able to find a job back in May. To prove we all have a chance of rebounding after, or even during, COVID-19. So don’t give up, anybody. You can hang in there just like me. It might not all go right, but I’ll tell you what, they can’t take my job away from me.”

The standard of proof for all but one claim was “more probable than not,” also known as a “preponderance of the evidence.” The standard of proof for the emotional distress claim was “clear and convincing evidence.” The burden of proof was on the plaintiff.

The defense believed their actions were justified because they considered the apartment “abandoned” and the plaintiff, who was more than three months behind on rent, had not communicated with them in weeks.

The plaintiff alleged that their tenant rights were violated and the incident led to them becoming homeless and to their health deteriorating.

The jury consisted of 12 members, any eight of which must agree on each question they have been asked. The defendant could have faced actual and punitive damages, including repossession of the apartment.

The Facts

As stipulated by the court, the undisputed facts of the case are:

1. The Plaintiff rented a unit located at [redacted] Havre, Hill County, Montana beginning in 2014.
2. At that time, rent was $400 per month.
3. At that time, Wanda McKinney owned and managed the rented premises.
4. Sarah McKinney became the owner of the rented premises in November of 2016.
5. The Plaintiff and Sarah McKinney entered into a verbal, month-to-month lease and agreed that monthly rent would still be $400.
6. In approximately October of 2019 Sarah McKinney raised the rent to $500 per month.
7. In December of 2019, Sarah McKinney entered into a contract with the Defendant that appointed the Defendant as the property manager of the rented premises, making the Plaintiff the tenant and the Defendant the landlord.
8. In September of 2020, the Plaintiff was unable to pay the full amount of rent, making a partial of $150.
9. The Plaintiff did not pay rent in October, November, and December of 2020. Merv did not make any payments to the Defendant after the September partial payment of $150.
10. On December 2, 2020, the Defendant’s counsel sent a Three (3) Day Notice to Satisfy Past Due Rent and Vacate after Termination (“Notice”) via certified mail.
11. The Notice demanded the Plaintiff pay rent or vacate the Residence three (3) days from receiving the Notice or three (3) days from the deemed service of the Notice.
12. The Defendant’s counsel also sent the requisite notice regarding COVID-19 and Governor Bullock’s eviction dispute procedures (“COVID Notice”).
13. On December 9, 2020, the Defendant filed a Complaint in the Hill County Justice Court of Record to have the Plaintiff removed from the rented premises.
14. In mid to late December of 2020, the Defendant left two notes for the Plaintiff.
One note read “Merv – if you will move out immediately, I will forgive back rent and stop court proceedings. You can store your stuff in the south part of the garage until you find a place. Please. Sarah.” The second note read “Merv- If you will move out immediately, I will forgive back rent and stop the court proceedings. You can move your stuff into the South end of a garage until you find a place. Please help me out. Sarah.”
15. On December 25, 2020, the Plaintiff was served with the Defendant’s Complaint.
16. The Defendant entered the rented premises on December 26, 2020, and changed the locks to the dwelling unit.
17. The Defendant moved all of the Plaintiff’s belongings into a garage on the rented premises on December 26, 2020.
18. After removing the Plaintiff’s property from the Residence, the Defendant left a Post-It note for the Plaintiff on the front door of the dwelling note, which read “Merv -your stuff is in the garage. Rent is forgiven. Thank you Sarah 12/26/2020.”
19. On January 5, 2021, the Defendant’s counsel, filed a Motion to Dismiss Complaint in the Hill County Justice Court. The Motion states: “(t)he reason for this Motion is that the parties have resolved the dispute that resulted in Plaintiff’s filing the
Complaint.”
20. The Centers for Disease Control and Prevention (CDC) issued an order that put a temporary halt to some residential evictions to help prevent the spread of COVID-19. The order went into effect on September 4, 2020, and restricted evictions through December 31, 2020. In February 2021, the order was extended through March 31, 2021. In March 2021, the order was extended through June 30, 2021.
21. Governor Steve Bullock issued several Directives in response to the state of emergency created by COVID-19 in Montana. The Directive issued on May 19, 2020 limits some evictions, fees, rent increases, and utility shutoffs until the end of the COVID-19 pandemic for renters who qualify.
22. The Defendant did not provide any notice to the Plaintiff that Defendant was going to enter the dwelling unit on December 26, 2020.
23. Prior to December 26, 2020, the Defendant did not have a valid court order to remove the Plaintiff from the rented Premises.
24. Since December 26, 2020, the Defendant has securely stored the Plaintiff’s personal property in a garage unit managed by the Defendant.

Wanda McKinney was Sarah McKinney’s mother. She was Fulton’s landlord until she passed away, at which point Sarah took over management of the property. She formed the LLC in December 2019.

After Fulton was evicted, a new tenant moved in on January 1st and has been paying $600 a month in rent.

Fulton says he lived out of his van for several months before finding a room and eventually a job at a local hotel.

The address that the plaintiff was evicted from has been redacted by New Media Broadcasters.

The Arguments

The Plaintiff

The plaintiff, with Attorney Lindsay Lorang providing counsel, argued that the defendant’s actions were excessive and the premises were not abandoned.

The plaintiff claimed that the lack of communication was certainly a mistake on Fulton’s part, but Fulton had recently been spending most of his time assisting his goddaughter in Havre who was in the midst of a drug addiction.

When the defendant evicted Fulton, Justice Court proceedings for eviction were already ongoing, with Fulton having been served papers by a Sheriff at his residence at 10 PM on the night of December 25th. McKinney was not aware that Fulton had been served until the document was filed on December 28th.

The plaintiff argued the defense acted purely in their own self-interest and knew that the eviction could leave Fulton without a home in the middle of the winter. According to the plaintiff, Fulton was never given an opportunity to address the matter in Justice Court prior to the eviction.

The plaintiff claims that Fulton lost weight and was depressed as a result of the eviction. This was backed up by witness Fern Lohse, a Property Site Director with HRDC District 4. She met with Fulton twice in early 2021 when he was trying to find a new place to live, describing him as “almost hopeless,” “despondent,” and “extremely sad.”

In his testimony, Fulton said the eviction “devastated” him mentally and physically. Fulton, who is 66, said his health was in great shape before the eviction, but his health has deteriorated since then. He says he had to have emergency aorta surgery this September and now has ongoing health issues.

The defense rebutted these claims by calling Duane George, a retired railroader, to the stand. George said he’s a gambling buddy of Fulton and has known him for 35 years. George said he did not notice any issues with him when they spoke at a local casino after the eviction. He said Fulton’s appearance hadn’t changed in the last year and Fulton and did not express any concerns about mental or physical health.

In closing arguments, Lorang argued that it “shouldn’t be surprising” that Fulton wouldn’t appear distressed when speaking with George, as they are simply gambling buds, not best friends.

Fulton said that when his possessions were moved into the uninsulated garage, his hand made entertainment system, as well as some electronics, were no longer usable. He also claimed perishable food was moved into the garage and spoiled, which McKinney denied.

Lorang stated in the closing arguments that the plaintiff is seeking damages because they want to ensure this situation doesn’t happen again, noting that McKinney has over 60 units that she leases out in Havre.

Lorang argued that McKinney was in a rush to evict Fulton because she had another tenant lined up that was in good standing and able to pay more in rent.

At the time of the eviction, Fulton’s source of income was from social security checks and COVID stimulus payments. He had recently been laid off from a job as a truck driver, a decision he says the employer ended up having to make because of the pandemic.

The Defense

The defense, with Attorney Tyson Parman acting as counsel, said that the plaintiff was trying to paint McKinney as a “cruel” landlord, which he says was simply not the case.

McKinney testified that she is proud to say she has a good rapport with “99 percent of rentors,” and often works with them to find rental assistance and is understanding in situations where tenants may be temporarily unable to pay rent.

She said that sometime in the fall of 2020, she spoke with Fulton, who said he found a program to help paying rent, and encouraged him to follow up with that program. McKinney says that was never followed up on and she never received any form seeking landlord verification for rental assistance.

McKinney that two letters were sent to Fulton through her attorney in December alerting him to ongoing eviction proceedings. Fulton has asserted he never received the correspondence.

McKinney said she also tried to communicate with Fulton via phone throughout December and drove by the property several times a week to see if he had been using it.

She said based on the lack of communication, the failure to pay rent or seek assistance, and based on the fact that the property looked as if it had been abandoned in her view, she made a “business decision” to enter the residence on the morning of December 26th and evict Fulton, adding that she has a family with five kids that depend on her providing steady income.

The defense called McKinney’s husband and business partner, Justin Aikins to the stand. He spoke briefly, saying that tenants often leave personal property behind when abandoning units. He says he was told by McKinney on the morning of December 26th that the unit was abandoned and she needed help removing the possessions in it. He said this was a quick process, since there was not a whole lot in the apartment compared to other units, and added that nothing that was left behind shocked him.

Parman claimed in closing arguments that it is clear Fulton cut off communication with McKinney when he was unable to pay rent. Parman argued that McKinney’s entrance into the residence did not constitute unlawful entry because she considered the property abandoned.

McKinney testified that she had a conversation with Fulton in the garage on the night of December 26th, at which point they entered into a verbal agreement that she would drop the Justice Court case and the unpaid rent.

Parman argued that Fulton did not make every available effort to pay rent, using evidence such as bank statements showing ATM withdrawals at local casinos for amounts ranging from $23 to just over $100.

During witness testimony, Parman had Fulton admit that he used some of the money at the casinos, but Fulton also said an ATM card was his only way to access money since he didn’t have a checking account.

At one point, Fulton was visibly agitated by Parman’s line of questioning, stating that “You made it sound like I spent all my money on casinos.”

Around this time, Judge Kaydee Snipes-Ruiz briefly intervened, telling Fulton he was rambling a bit and should answer Parman’s questions as concisely as possible.

Parman said that Fulton’s attempts to assist his goddaughter were “admirable” but didn’t excuse his “lack of effort” in communicating with McKinney. He questioned Fulton’s assertion that he had lost weight, using Fulton’s own testimony that said he had been eating unhealthy food since being evicted.

During closing arguments, Parman told the jury that this case is “about revenge,” and that Fulton “simply wants to win.”

Lorang rebutted that in her final remarks by saying that Fulton is seeking justice, not revenge.

The Trial

What was originally expected to be a one day trial turned into a two day affair.

The trial began at 8:30 AM on Tuesday morning with jury selection. By 10:45 AM, a jury had been selected and Judge Kaydee Snipes-Ruiz provided them with instructions and ground rules.

Day one of the trial went well into the afternoon and evening, with the Jury being allowed to head home just before 5:30 PM. Court proceedings went until around 6:45 PM, as the parties decided on Jury instructions and the verdict form.

Day two of the trial began just after 10 AM Wednesday, with the defense notifying the Judge of the dismissal of their claim of negligent infliction of emotional distress. Jury instructions and the verdict form were tweaked based on this decision.

At 10:19 AM, the jury entered and were provided with instructions. Closing arguments were then presented and the jury was given final instructions.

At 12:40 PM, 12 of the jurors began deliberations while the 13th juror was notified that they were selected as the alternate and could head home.

The jury came to a verdict just before 3:20 PM. They asked the Judge one question during deliberations. It was “Can we request Montana landlord/tenant laws?”

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